Case 1:15-cv-20782-JEM Document 172 Entered on FLSD Docket 11/04/2015 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/
DEFENDANTS OBJECTION TO PLAINTIFFS MODIFIED NOTICE OF
TELEPHONIC HEARING BEFORE MAGISTRATE JUDGE JONATHAN GOODMAN
Defendants object to Plaintiffs Modified Notice of Telephonic Hearing Before
Magistrate Judge Jonathan Goodman (the Modified Notice). ECF No. 171. Last week, Plaintiff
noticed a hearing for November 4, 2015, at 2:30 p.m. (the Hearing), to address Defendants
alleged obstruction of discovery and alleged harassment of Plaintiffs family. This week, just 24
hours before the Hearing, Plaintiff filed the Modified Notice, which purports to change the
subject of the Hearing so that Plaintiff may address Defendants objections to his deposition
notices of three nonparties in New York on November 9 and November 10. Because the Courts
procedures do not permit Plaintiff unilaterally and at the last minute to change the subject of a
duly noticed hearing, and because the dispute that Plaintiff seeks to address at the Hearing
cannot, for many reasons, be resolved thereat, Defendants object to the Modified Notice.
The following background provides context to this objection:

On October 14 and October 15, 2015, Plaintiff deposed by videoconference the

30(b)(6) representatives of Houghton Mifflin Harcourt Publishing Company
(HMH) and Houghton Mifflin Harcourt Company (HMHC). Certain of the
testimony concerned the deponents prior employment at Simon & Schuster,
which initially was going to, but ultimately did not, publish a version of the book

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that ultimately was published by Houghton Mifflin as Pay Any Price: Greed,
Power, and Endless War (the Book). The deponent, Bruce Nichols, was
Defendant James Risens editor at Simon & Schuster and then at HMH.

On October 21, 2015, Plaintiff caused to be e-mailed to Defendants counsel three

Notices of Taking Deposition Duces Tecum, which stated that Plaintiff would
depose by videoconference the records custodian of Simon & Schuster, its
employee Priscilla Painton, and Risens literary agent Tina Bennett in New York
on November 9 and November 10 (the Non-party Depositions). See Ex. A:
Notices of Non-party Depositions.1

On October 27, 2015, Plaintiff filed a Notice of Telephonic Hearing Before

Magistrate Judge Jonathan Goodman, scheduling a hearing for November 4,
2015, at 2:30 p.m. to address two disputes: obstruction of Plaintiff being able to
subpoena and depose Michael Flynn, the former attorney of Plaintiff, and
Defendants harassment of Plaintiff, his wife, his daughter and son in law. ECF
No. 165.

On October 30, 2015, Defendants sent a letter to Plaintiff objecting to the Nonparty Depositions to the extent Plaintiff intends to take the depositions by
videoconference, as indicated in the [Notices]. Ex. B: Letter from Laura R.
Handman to Larry Klayman (Oct. 30, 2015). Additionally, Defendants requested
that Plaintiff withdraw document requests regarding any communications
James Risen may have had with Priscilla Painton on confidential sources and
classified material and/or sources, because any such communications are
protected by the applicable common law and First Amendment reporters
privilege and applicable shield law. Id.

On November 2, 2015, the parties counsel participated in a meet-and-confer

phone call. The parties counsel discussed Defendants objections to taking the
Non-party Depositions by videoconference and Defendants objections regarding
the reporters privilege and the applicable shield law.

On November 2, 2015, counsel for Simon & Schuster, Inc. (S&S) and Priscilla
Painton sent an e-mail to Plaintiffs counsel enclosing objections to the
Subpoenas to Testify at a Deposition in a Civil Action. See Ex. C: Letter from
Andrew K. Nieh to Larry Klayman (Nov. 2, 2015). Among other objections,
counsel for S&S and Painton objected on the ground that [the subpoenas] seek[]
materials which are protected from disclosure by news reporting or reporters
privileges , as well as statutory privileges. Id. 4. Counsel for S&S and Painton
also wrote that because the Subpoenas were not properly served S&S [and

Although Plaintiff served on Defendants the Notices of Non-party Depositions, Plaintiff did not
serve on Defendants the subpoenas commanding the Non-party Depositions and the production
of documents. It was not until November 3, 2015, after requested by Defendants, that Plaintiff
served on Defendants the actual subpoenas.
2

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Painton] do[] not have any obligation to appear for the depositions and will
therefore not be producing witnesses at the noticed date and time. Id. 12.

On November 3, 2015, at about 12:14 p.m. EST, Defendants counsel e-mailed

Plaintiffs counsel a follow-up meet-and-confer e-mail on Defendants objections
to the Non-party Depositions. See Ex. D: E-mail from Laura R. Handman to Larry
Klayman (Nov. 3, 2015, 12:14 p.m. EST). Defendants counsel wrote, among
other things, that if [Plaintiffs counsel] decide[s] to seek a court order in
S.D.N.Y. regarding the video conference and reporters privilege/shield law
issues, please confer with us about scheduling. Id.

On November 3, 2015, at about 2:33 p.m. EST, Plaintiff filed the Modified
Notice. According to the Modified Notice, an urgent matter has arisen involving
the claim of reporters privilege with regard to the depositions of Simon &
Schuster, Priscilla Painton, and Tina Bennet, which, Plaintiff states, are
currently scheduled to take place on November 9th and 10th, 2015. Plaintiff
stated nothing in the Modified Notice about the objectionsboth procedural and
substantivelodged by S&S and Painton.

On November 3, 2015, at about 2:53 p.m. EST, Plaintiffs counsel responded to

Defendants counsels earlier e-mail. See Ex. E: E-mail from Larry Klayman to
Laura R. Handman (Nov. 3, 2015, 2:53 p.m. EST).

In the light of this background, Defendants, for three main reasons, object to the use of
the Hearing to address Defendants objections to the Non-party Depositions.
First, a party may not modify the subject of a duly scheduled hearing unilaterally and just
24 hours before the hearing. This Court has designed procedures to help the Parties and the
Court work together to timely resolve discovery disputes without undue delay and unnecessary
expense. Magistrate J. Goodmans Disc. Procedures Order 1, ECF No. 123. A party must first
confer about a discovery dispute, contact Chambers, and place the matter on the next available
discovery calendarand must do so no later than 5 business days preceding the discovery
calendar. Id. 2. On the same day, the movant must file a notice of hearing, which must briefly
and succinctly identify the substance of the discovery matter to be heard. Id. The Court
encourages parties to continue to try to resolve their disputes even after a hearing has been set.
See id. 4. But nowhere does the Courts order permit what Plaintiff seeks to do heresubstitute

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the day before a hearing one (unresolved) dispute with an entirely separate dispute. Plaintiff, like
every other litigant, must follow the Courts procedures.
Second, this is not the proper forum to resolve this dispute. Contrary to Plaintiffs
assertion, it is not only Defendants objections that prevent Plaintiffs counsel from questioning
[the Non-party Deponents]. Modified Notice 1. Counsel for S&S and Painton lodged the same
objections, and has stated that the depositions will not proceed at all due to failure of proper
service of the subpoenas. The third-party deponents are not before this Court. Protecting persons
from, or enforcing, subpoenas is left to the court for the district where compliance is required.
Fed. R. Civ. P. 45(d)(1); see also, e.g., id. 45(d)(2)(B)(i); id. 45(d)(3)(A). Here, that is the
Southern District of New York.
Third, even if this were the proper forum, it is inappropriate to address this dispute in just
30 minutes, on the phone, and without proper notice to Defendants and no notice to or proper
opportunity, if any in this Court, for the Non-party Deponents to participate. This dispute is
factually and legally complex and may be rare enough to bypass the standard no-motion
policy. Magistrate J. Goodmans Disc. Procedures Order 3. Among other issues, the Court will
have to address: (1) the threshold choice-of law-question about which states reporters privilege
and shield law applies; (2) whether the Court can rule on reporters privilege and shield law
objections raised by third-party deponents not before the Court; and (3) the core issue of whether
Plaintiff has overcome the reporters privilege and shield law where, as here, Risen and HMH
already disclosed the sources and newsgathering materials underlying the chapter of the Book in
suit to Plaintiff, but asserted the reporters privilege and shield law as to the remaining chapters
of the Book and other books and articles by Risen.

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In short, it is improper to raise this dispute with just 24 hours noticethe claimed
urgen[cy of the] matter notwithstanding. Modified Notice 1. Defendants request that the Court
decline to entertain argument at the Hearing thereon. Defendants are prepared to proceed with
the Hearing as originally noticed.
Dated: November 4, 2015

Respectfully submitted,

s/Brian W. Toth
Sanford L. Bohrer
Florida Bar No. 160643
sbohrer@hklaw.com
Brian W. Toth
Florida Bar No. 57708
brian.toth@hklaw.com
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, Florida 33131
Telephone: (305) 374-8500
Fax: (305) 789-7799
and
Laura R. Handman (admitted pro hac vice)
laurahandman@dwt.com
Micah J. Ratner (admitted pro hac vice)
micahratner@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Ave., NW, Suite 800
Washington, D.C. 20006
Tel.: (202) 973-4200
Fax: (202) 973-4499
Counsel for Defendants
CERTIFICATE OF SERVICE
I certify that on November 4, 2015, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.
s/Brian W. Toth